Can I bring up cheating in a divorce proceeding in regards to assets and liabilities, settlement?

Asked over 1 year ago - Jacksonville, FL

I have heard Florida is a "No-Fault" state& I'm told the judge doesnt want to hear about his cheating, lies & B.S., but what about alimony & asset division? He had a child outside our marriage & was paying child support, which later became a court order not private. So I beleive he put aside alot of my money, OUR Money out of the marriage & into this woman's hands, and if not just for the child but for what ever fun & games they have been having. Let alone countless others. I have email and Facebook exhibits to back these thoughts as well. Second part of question if it can be brought up is when &where? is it brought up in the Petition or at mediation or in trial if goes there? (& no I'm not planning doing myself. I want to know before sitting down & picking an attorney)

Attorney answers (5)

  1. Aaron James Irving

    Pro

    Contributor Level 14

    3

    Lawyers agree

    Answered . Generally speaking, accusations of infidelity are not material to a dissolution because, as you've stated, Florida is a no-fault divorce state. The only way infidelity is material is if marital assets are being significantly wasted on the affair. C/S outside of marriage is something that will come up on the financial affidavit, however, this, in and of itself, is likely not material.

    This would come up at trial through questioning and/or in a petition for dissolution. Don't bring up at mediation b/c the goal of mediation is to agree. Accusations of infidelity will not help the parties resolve their differences.

    www.IrvingReillyLaw.com

    Note: The information presented at this site should not be construed to be formal legal advice nor the formation... more
  2. Christopher Michael Taylor

    Pro

    Contributor Level 9

    3

    Lawyers agree

    Answered . Florida’s no-fault divorce law discourages parties from bringing marital misconduct issues, such as adultery, into the courtroom. However, despite Florida’s no-fault divorce law, adultery can still be relevant when alimony is an issue in a divorce case, but not to divide assets

    Florida Statute Sec. 61.08 states in relevant part:

    “The court may consider the adultery of either spouse and the circumstances thereof in determining the amount of alimony, if any, to be awarded.”

    As the statute indicates, adultery is a factor Florida courts may consider in determining whether or not to award alimony, but adultery cannot be separated, as a punishment to spouse who committed adultery, from the other factors necessary to determine the availability of alimony. Even if the paying spouse has committed adultery, the spouse who requests alimony must show the need for alimony and the other spouse’s ability to pay.

    In keeping with Florida’s no-fault divorce laws, when adultery and alimony are at issue, courts will often look at whether or not the adultery has had an economic impact on the marriage. If, for example, a spouse has dissipated a substantial amount of marital assets in furtherance of an affair on trips, entertainment and support of a paramour, then a court may issue a lump sum alimony award (which can be paid from marital assets) to compensate the other spouse for the reduction of marital assets caused by adultery.

    In terms of timing, it would be unwise to reference adultery in the Petition. You should conduct sufficient discovery to document the dissipation of marital assets.

    The biggest downside of referencing the adultery at mediation would be to tip off the other party to your case strategy; however, in most cases, you would want to reference the adultery/dissipation of assets issue in mediation if you're looking for settlement. While Mediation is about settlement, the settlement is often reached by a frank discussion about how the case will go at trial.

    There are many complex and nuanced factors to be consider that cannot be easily answered in the context of the avvo.com forum. It would be wise to consult with a local attorney.

    (P) 904-339-5298. This Avvo.com answer is to provide general information and a general understanding of the law,... more
  3. John P Wallace

    Contributor Level 11

    1

    Lawyer agrees

    Answered . In Florida, the judge has to consider any waste of marital assets in the last 2 years and has the discretion to go back prior to 2 years. It is an interesting question of law to possibly argue that the child support money and other money spent on the woman and the child were a waste of marital assets. I am not aware of a court saying they are but it would be interesting arguments in favor of some form of unequal property distribution to you.

  4. David Alexander Browde

    Pro

    Contributor Level 20

    2

    Lawyers agree

    Answered . Asset division is unrelated to fault. Consult a local attorney and by all means discuss whether there has been dissipation of marital assets.

    Under the rules governing the conduct of attorneys in New York it may be necessary to remind you that this answer... more
  5. Michael Gerard Trerotola

    Contributor Level 6

    Answered . The answers already provided are all comprehensive and provide sufficient answers to your questions. Divorce, as painful as it can be, is not about exacting revenge, or trying to get back at the one who has caused this heartache for you. You are obviously very hurt, and although no one can fault you for how you are feeling, you must accept that, as difficult as it may be, a divorce is not about trying to destroy the life of the one who hurt you. Rather, it is about laying a foundation for yourself and the rest of your life. The objective should not be to look back for "pay-back," but to look forward and transition to your new beginning. Anger and a want for revenge will only cloud your good judgment, and trying to have the Court focus on what you are suggesting you want it to will likely be unproductive, and worst, it could potentially alienate the Court, as you are right, the judge has no time for it. Remember: "This too shall pass." - Mike Trerotola

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